As Niall Fergusson stated in The Great Degeneration and his Reith Lectures, the rule of law is not the rule of lawyers.
Law- nomos- becomes capricious, inhuman (as Krylenko, Che Guevera and The Red Guard demonstrate) and contrary to human anthropology in the absence of physus, (natural law, the law of nature as noted on the US Constitution.)
Materialist collectivism belongs in the catalogue, per Delsol, of the unlearned lessons of the 20thC.
To point any of this out is to be met with the bric bat of academic by the provincial minded.
In our current environment, I doubt that my request for an oral submission to back up the written will be granted. In essence, the submission is this. The phrase, “the Principles of the Treaty”, was introduced via the 1975 Waitangi Tribunal Act. Thereafter it has been used in a variety of pieces of legislation, which has created an environment of excessive multiple interpretations. By the turn of the century, the phrase has become in our political culture almost plastic, as malleable as the voice of any ‘interest group’ pushing their own agenda.
Parliament in 1975 created this confusion; only Parliament, as the locus of the sovereign expression of a democratic people, can define what those Principles are.
If the legislature is sovereign it is a redundancy for it to assert it by exercising its legislative power. The notion of joint sovereignty is a red herring. It should not be used as a Trojan horse to deprive a class of persons of their rights. Once it is understood that recognition of property rights, albeit as communal property, is economically benign all objections fall away.
Robert, I am not quite sure what you are trying to say in this comment. The Trojan horse analogy is a good one. When Parliament legislated for the treaty principles in 1975 Parliament was unwittingly allowing a Trojan horse into the Parliamentary citadel.
Brevity might be the soul of wit but the same cannot necessarily be said of clarity. I invite you to read my submission which I posted on Substack at the time I sent it to Wellington a few days before the deadline.
I am making two points:
- The assertion of a given state does not change the actuality of that state. For example, asserting that I am alive does not change whether I am alive or not. Same with sovereignty. If the legislature is supreme then it is supreme. It does not change anything for it to declare it to be so.
- I believe that the various beds upon which the mass of water rests, whether saline or fresh, belong to the inhabitants of these islands who came before Europeans. My analysis is born of my own personal experience of the Manukau Harbour which suffers the tragedy of the commons when it need not do so. As an accountant I think in terms of financial elements. The Harbour as it stands is a cost centre whereas if property rights were recognised it could be a profit centre (an asset).
I am deeply sceptical of your suggestion that section 4 of the Lawyers & Conveyancers Act be expanded. I would have thought it more valuable to get the legal profession to comply with what is already there. From bitter personal experience I am not convinced the mass ranks of practicing lawyers have any respect for the rule of law at all.
Robert, I have now looked at your submission. You are correct that the sovereignty of Parliament and the rule of law are fundamental to New Zealand's constitution. They have been described as its twin pillars.
In its most recent statutory recognition of the twin pillars, Parliament legislated that "Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament." You will note that Parliament was not *asserting* adherence to either the rule of law or the sovereignty of Parliament but making it clear that the Act (the Senior Courts Act 2016) did not interfere with that existing commitment. This, in the 2016 Act, was a repetition of what had been contained in an Act it was replacing (the Supreme Court Act 2003) which established the Supreme Court as New Zealand's final court of appeal in place of the Judicial Committee of the Privy Council. It had been thought possible that the establishment of the Supreme Court might in some way be construed as limiting New Zealand's commitment to the rule of law and the sovereignty of Parliament, so it was decided to make it clear that it was not.
The need for the Treaty Principles Bill has arisen because those concerned with interpreting the "principles" have failed to give proper attention to the twin pillars of New Zealand's constitution. Had they done so, they could not have created interpretations challenging Parliament's sovereignty and the rule of law. The way the principle of partnership has been developed challenges both Parliament's sovereignty and the rule of law. Principles 1 and 3 are required to correct this erroneous approach by aligning the principles with the Constitution.
Article 2 of the Treaty uses the term taonga. Professor Kawharu translated that for the Tribunal as "treasures". That was not its meaning in 1840. In 1840 it meant property, specifically property obtained by the spear. See https://open.substack.com/pub/garyjuddkc/p/taonga?r=1wehrs&utm_campaign=post&utm_medium=web. The protection conferred by Article 2 was therefore of land, abodes and property possessed by the rangatira, hapu and the people.
A successful Treaty claim results in a recommendation to the government. Negotiation follows and the settlement is implemented by legislation.
The settlement is possible only because Parliament is sovereign. The Treaty itself is unenforceable. Prior to the process introduced by the Treaty of Waitangi Act 1975, no redress was available for breaches of Article 2. The 1975 Act made it possible for recommendations to be made to the government which in turn might bring legislation before the House, to enable a settlement to be legislated. Principle 2 retains that same ability. It makes it clear that the rights protected are those which existed in 1840. If those rights are the same as everyone else's, there is no need for anything special. But if they are not the same as everyone else's, there must be an exercise of Parliamentary sovereignty to confer them. That is to say, they must be legislated as the final act of a settlement of a historical treaty claim.
I suspect you and I are in violent agreement on the fundamentals. I accept as a given that the legislature holds supreme power within our territory which, incidentally, I see as extending to the submarine continent upon which we sit. The only constraints are those self-imposed through the Constitution Act and the Legislation Act but they could be tossed aside as bagatelles if that was the wont of those holding a majority in Parliament. The only means by which change could be given effect would be by insurrection from within or invasion from without. I don’t even think Parliament could abolish itself.
As you say the Treaty is unenforceable other than by Parliament. In saying that I assume there is no arcane international commitment past governments have made which elevate the Treaty to a more powerful status. I would add that if we got a SCONZ bench full of judges of the ilk of Neil Gorsuch it may change. He is a fierce defender of Native American rights because he strictly adheres to the Constitution.
I also think the rule of law critical to a fair and prosperous society. Most importantly, perhaps, is that the rule of law serves as a bulwark to protect property rights. I think that certainty of tenure was recognised as critical to prosperity in the reign of Henry II and that recognition gave rise to the assize of novel disseisin which is concerned with land ownership. But I also think that the rule of law in Aotearoa New Zealand is a charade. I make that claim not from some theoretical perspective – though I adhere to the theories of the critical legal theorists. I make the claim from bitter personal experience. I have seen pusillanimity from officials and prejudice from judicial officers of one sort or another. I would go so far as to say I have watched our legal and administrative processes cynically manipulated so as to damage me. I agree with you, albeit from a very different perspective, far too much power lies in the hands of judges.
Where we disagree arises in two respects. I think yet more pointless declaratory statements from the legislature will make no difference whatsoever. As you say there is more than enough declaration to constrain judicial activism. If not, then the fault lies in the way the rule of law is adjudicated suggesting radical change. Change of that character is what I advocate.
We agree that taonga means property of one sort or another. The scope of the term property might be where we differ. As I have made plain, I put my emphasis on something very specific – the Manukau Harbour. Clearly if you establish the principle it is extended to the limits of our continental shelf. I refer to the tragedy of the commons. The concept had been debunked in some measure as there are administrative arrangements which can be put in place to mitigate the effects of exploitative mentality. However, the most effective way of preserving and enhancing is to recognise property rights. That is what was pioneered here with the notion of fishing quotas.
Perhaps I can illustrate with a famous phrase – certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness – Jefferson’s version rather than our own stalled effort. As it happens it is likely that the pursuit of happiness is a euphemism for property. For Jefferson that casts a shadow upon him because humans were property when he drafted the phrase. Nonetheless, from my perspective it is a happy coincidence of meaning. Surely, we can accept that the first inhabitants can he happy in both senses of the phrase.
What I'm wondering about is your use of the term 'sovereignty of Parliament.' From time immemorial 'sovereignty' has been understood as the quality that accrues to a ruler, a specific human person, a king or prince, imbued with the power of rulership and authority. In NZ, Parliament proclaims (Constitution Act 1986) that 'the Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time.' It would be quite perverse that we could be ruled by an institution, which is of mere human creation. How can living breathing creatures be ruled over by a mere reified concept? Thus the monarch must be a human person. Our Monarch is established as such by being crowned in a Christian church by an archbishop of said church, and bears the title 'Defender of the Faith' (Royal Titles Act 1974). Ok, the principles of the 1688 Whig ascendancy established parliament as 'supreme.' But supremacy is not necessarily equivalent to sovereignty. The point being that the body cannot exist in a healthy state without a head, thus we need a Head of State, an individual human person. Otherwise, who says that Parliament should be 'sovereign'? And when our Parliament itself establishes that the Monarch is the Sole Sovereign? And it was the predecessor thereof that was mentioned in the 6 February 1840 'treaty.' Perhaps we need to revive the process whereby Parliament may impeach and remove a judge for 'misbehaviour' (including not following Parliament??)..??? Otherwise, how can Parliament enforce its supremacy? Ok, I'm very glad for your submission to the select committee, though I think that these questions should be clarified as the basis upon which we may proceed? Please respond as appropriate.
Sovereignty is about who rules. In a nation subject to the rule of law, the law rules. Accepting that, the question is who makes the law. In a Parliamentary democracy, Parliament makes the law, delegating some lawmaking authority to the government (ministers and departments) and to agencies of the government.
The judiciary interpret and apply the law to resolve specific cases. It has a lawmaking function. To the extent that legislation does not cover a situation, or it is unclear the judges may need to develop the law based on previous decisions, to meet the exigencies of the situation. The “lands” decision of the Court of Appeal is a good example of this process. Parliament created the idea of there being principles of the Treaty without defining them. Then a later Parliament said that land could not be transferred from government departments to the new state-owned enterprises if to do so was inconsistent with the principles. The Court of Appeal had no option but to decide the constraints this legislation placed on the government, drawing on analogies with existing legal principles developed for other purposes.
In a Parliamentary democracy, Parliament is constituted by representatives elected by the people. The great merit of a Parliamentary democracy is that the people can get rid of representatives who are not legislating or otherwise governing in accordance with their wishes and replace them with representatives who they think will do a better job. They can do that peacefully through periodic elections. Where there is no established process, force is usually required.
Whilst it is Parliament which makes the law, generally it is the government which proposes the law to Parliament. Parliament chooses the government. Government cannot remained government if it does not enjoy the confidence of the elected representatives.
In principle, in a Parliamentary democracy, ultimate sovereignty is enjoyed by the people because they are able to choose, indirectly, who rules and who makes the law.
Is that ability is able to be exercised only periodically and with significant delays between each occasion, the political reality is that Parliament is the repository of sovereignty because it can determine the composition of the government and it can make the laws.
My wish is that all lawyers and Judges active in New Zealand would follow your lead and have the integrity you have shown Gary
Thanks, Jeffrey.
As Niall Fergusson stated in The Great Degeneration and his Reith Lectures, the rule of law is not the rule of lawyers.
Law- nomos- becomes capricious, inhuman (as Krylenko, Che Guevera and The Red Guard demonstrate) and contrary to human anthropology in the absence of physus, (natural law, the law of nature as noted on the US Constitution.)
Materialist collectivism belongs in the catalogue, per Delsol, of the unlearned lessons of the 20thC.
To point any of this out is to be met with the bric bat of academic by the provincial minded.
Absolutely, it is not the rule of lawyers - or of judges!
In our current environment, I doubt that my request for an oral submission to back up the written will be granted. In essence, the submission is this. The phrase, “the Principles of the Treaty”, was introduced via the 1975 Waitangi Tribunal Act. Thereafter it has been used in a variety of pieces of legislation, which has created an environment of excessive multiple interpretations. By the turn of the century, the phrase has become in our political culture almost plastic, as malleable as the voice of any ‘interest group’ pushing their own agenda.
Parliament in 1975 created this confusion; only Parliament, as the locus of the sovereign expression of a democratic people, can define what those Principles are.
Completely agree
If the legislature is sovereign it is a redundancy for it to assert it by exercising its legislative power. The notion of joint sovereignty is a red herring. It should not be used as a Trojan horse to deprive a class of persons of their rights. Once it is understood that recognition of property rights, albeit as communal property, is economically benign all objections fall away.
Robert, I am not quite sure what you are trying to say in this comment. The Trojan horse analogy is a good one. When Parliament legislated for the treaty principles in 1975 Parliament was unwittingly allowing a Trojan horse into the Parliamentary citadel.
Brevity might be the soul of wit but the same cannot necessarily be said of clarity. I invite you to read my submission which I posted on Substack at the time I sent it to Wellington a few days before the deadline.
I am making two points:
- The assertion of a given state does not change the actuality of that state. For example, asserting that I am alive does not change whether I am alive or not. Same with sovereignty. If the legislature is supreme then it is supreme. It does not change anything for it to declare it to be so.
- I believe that the various beds upon which the mass of water rests, whether saline or fresh, belong to the inhabitants of these islands who came before Europeans. My analysis is born of my own personal experience of the Manukau Harbour which suffers the tragedy of the commons when it need not do so. As an accountant I think in terms of financial elements. The Harbour as it stands is a cost centre whereas if property rights were recognised it could be a profit centre (an asset).
I am deeply sceptical of your suggestion that section 4 of the Lawyers & Conveyancers Act be expanded. I would have thought it more valuable to get the legal profession to comply with what is already there. From bitter personal experience I am not convinced the mass ranks of practicing lawyers have any respect for the rule of law at all.
Robert, I have now looked at your submission. You are correct that the sovereignty of Parliament and the rule of law are fundamental to New Zealand's constitution. They have been described as its twin pillars.
In its most recent statutory recognition of the twin pillars, Parliament legislated that "Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament." You will note that Parliament was not *asserting* adherence to either the rule of law or the sovereignty of Parliament but making it clear that the Act (the Senior Courts Act 2016) did not interfere with that existing commitment. This, in the 2016 Act, was a repetition of what had been contained in an Act it was replacing (the Supreme Court Act 2003) which established the Supreme Court as New Zealand's final court of appeal in place of the Judicial Committee of the Privy Council. It had been thought possible that the establishment of the Supreme Court might in some way be construed as limiting New Zealand's commitment to the rule of law and the sovereignty of Parliament, so it was decided to make it clear that it was not.
The need for the Treaty Principles Bill has arisen because those concerned with interpreting the "principles" have failed to give proper attention to the twin pillars of New Zealand's constitution. Had they done so, they could not have created interpretations challenging Parliament's sovereignty and the rule of law. The way the principle of partnership has been developed challenges both Parliament's sovereignty and the rule of law. Principles 1 and 3 are required to correct this erroneous approach by aligning the principles with the Constitution.
Article 2 of the Treaty uses the term taonga. Professor Kawharu translated that for the Tribunal as "treasures". That was not its meaning in 1840. In 1840 it meant property, specifically property obtained by the spear. See https://open.substack.com/pub/garyjuddkc/p/taonga?r=1wehrs&utm_campaign=post&utm_medium=web. The protection conferred by Article 2 was therefore of land, abodes and property possessed by the rangatira, hapu and the people.
A successful Treaty claim results in a recommendation to the government. Negotiation follows and the settlement is implemented by legislation.
The settlement is possible only because Parliament is sovereign. The Treaty itself is unenforceable. Prior to the process introduced by the Treaty of Waitangi Act 1975, no redress was available for breaches of Article 2. The 1975 Act made it possible for recommendations to be made to the government which in turn might bring legislation before the House, to enable a settlement to be legislated. Principle 2 retains that same ability. It makes it clear that the rights protected are those which existed in 1840. If those rights are the same as everyone else's, there is no need for anything special. But if they are not the same as everyone else's, there must be an exercise of Parliamentary sovereignty to confer them. That is to say, they must be legislated as the final act of a settlement of a historical treaty claim.
I suspect you and I are in violent agreement on the fundamentals. I accept as a given that the legislature holds supreme power within our territory which, incidentally, I see as extending to the submarine continent upon which we sit. The only constraints are those self-imposed through the Constitution Act and the Legislation Act but they could be tossed aside as bagatelles if that was the wont of those holding a majority in Parliament. The only means by which change could be given effect would be by insurrection from within or invasion from without. I don’t even think Parliament could abolish itself.
As you say the Treaty is unenforceable other than by Parliament. In saying that I assume there is no arcane international commitment past governments have made which elevate the Treaty to a more powerful status. I would add that if we got a SCONZ bench full of judges of the ilk of Neil Gorsuch it may change. He is a fierce defender of Native American rights because he strictly adheres to the Constitution.
I also think the rule of law critical to a fair and prosperous society. Most importantly, perhaps, is that the rule of law serves as a bulwark to protect property rights. I think that certainty of tenure was recognised as critical to prosperity in the reign of Henry II and that recognition gave rise to the assize of novel disseisin which is concerned with land ownership. But I also think that the rule of law in Aotearoa New Zealand is a charade. I make that claim not from some theoretical perspective – though I adhere to the theories of the critical legal theorists. I make the claim from bitter personal experience. I have seen pusillanimity from officials and prejudice from judicial officers of one sort or another. I would go so far as to say I have watched our legal and administrative processes cynically manipulated so as to damage me. I agree with you, albeit from a very different perspective, far too much power lies in the hands of judges.
Where we disagree arises in two respects. I think yet more pointless declaratory statements from the legislature will make no difference whatsoever. As you say there is more than enough declaration to constrain judicial activism. If not, then the fault lies in the way the rule of law is adjudicated suggesting radical change. Change of that character is what I advocate.
We agree that taonga means property of one sort or another. The scope of the term property might be where we differ. As I have made plain, I put my emphasis on something very specific – the Manukau Harbour. Clearly if you establish the principle it is extended to the limits of our continental shelf. I refer to the tragedy of the commons. The concept had been debunked in some measure as there are administrative arrangements which can be put in place to mitigate the effects of exploitative mentality. However, the most effective way of preserving and enhancing is to recognise property rights. That is what was pioneered here with the notion of fishing quotas.
Perhaps I can illustrate with a famous phrase – certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness – Jefferson’s version rather than our own stalled effort. As it happens it is likely that the pursuit of happiness is a euphemism for property. For Jefferson that casts a shadow upon him because humans were property when he drafted the phrase. Nonetheless, from my perspective it is a happy coincidence of meaning. Surely, we can accept that the first inhabitants can he happy in both senses of the phrase.
What I'm wondering about is your use of the term 'sovereignty of Parliament.' From time immemorial 'sovereignty' has been understood as the quality that accrues to a ruler, a specific human person, a king or prince, imbued with the power of rulership and authority. In NZ, Parliament proclaims (Constitution Act 1986) that 'the Sovereign in right of New Zealand is the head of State of New Zealand, and shall be known by the royal style and titles proclaimed from time to time.' It would be quite perverse that we could be ruled by an institution, which is of mere human creation. How can living breathing creatures be ruled over by a mere reified concept? Thus the monarch must be a human person. Our Monarch is established as such by being crowned in a Christian church by an archbishop of said church, and bears the title 'Defender of the Faith' (Royal Titles Act 1974). Ok, the principles of the 1688 Whig ascendancy established parliament as 'supreme.' But supremacy is not necessarily equivalent to sovereignty. The point being that the body cannot exist in a healthy state without a head, thus we need a Head of State, an individual human person. Otherwise, who says that Parliament should be 'sovereign'? And when our Parliament itself establishes that the Monarch is the Sole Sovereign? And it was the predecessor thereof that was mentioned in the 6 February 1840 'treaty.' Perhaps we need to revive the process whereby Parliament may impeach and remove a judge for 'misbehaviour' (including not following Parliament??)..??? Otherwise, how can Parliament enforce its supremacy? Ok, I'm very glad for your submission to the select committee, though I think that these questions should be clarified as the basis upon which we may proceed? Please respond as appropriate.
Sovereignty is about who rules. In a nation subject to the rule of law, the law rules. Accepting that, the question is who makes the law. In a Parliamentary democracy, Parliament makes the law, delegating some lawmaking authority to the government (ministers and departments) and to agencies of the government.
The judiciary interpret and apply the law to resolve specific cases. It has a lawmaking function. To the extent that legislation does not cover a situation, or it is unclear the judges may need to develop the law based on previous decisions, to meet the exigencies of the situation. The “lands” decision of the Court of Appeal is a good example of this process. Parliament created the idea of there being principles of the Treaty without defining them. Then a later Parliament said that land could not be transferred from government departments to the new state-owned enterprises if to do so was inconsistent with the principles. The Court of Appeal had no option but to decide the constraints this legislation placed on the government, drawing on analogies with existing legal principles developed for other purposes.
In a Parliamentary democracy, Parliament is constituted by representatives elected by the people. The great merit of a Parliamentary democracy is that the people can get rid of representatives who are not legislating or otherwise governing in accordance with their wishes and replace them with representatives who they think will do a better job. They can do that peacefully through periodic elections. Where there is no established process, force is usually required.
Whilst it is Parliament which makes the law, generally it is the government which proposes the law to Parliament. Parliament chooses the government. Government cannot remained government if it does not enjoy the confidence of the elected representatives.
In principle, in a Parliamentary democracy, ultimate sovereignty is enjoyed by the people because they are able to choose, indirectly, who rules and who makes the law.
Is that ability is able to be exercised only periodically and with significant delays between each occasion, the political reality is that Parliament is the repository of sovereignty because it can determine the composition of the government and it can make the laws.